Citation Nr: 21003993 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 18-45 267 DATE: January 25, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. The preponderance of the evidence indicates that in-service herbicide agent exposure cannot be established. 2. The preponderance of the evidence does not demonstrate that the Veteran’s currently diagnosed prostate cancer manifested during, or as a result of, active military service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1965 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript is of record. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.800(c). 1. Entitlement to service connection for prostate cancer. The Veteran asserts that his prostate cancer is due to his exposure to herbicide agents while stationed in Thailand at Nakhon Phanom Royal Thai Air Force Base (RTAFB). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, certain disorders, including prostate cancer, if manifest to a degree of 10 percent or more for an herbicide agent-exposed veteran may be presumed service connected even if there is no evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). Generally, veterans diagnosed with an enumerated disease who served in the Republic of Vietnam, near the Korean demilitarized zone (DMZ) in areas where herbicides were known to have been applied, or who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6). Although statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand, per information from the Department of Defense, VA recognizes that herbicide agents, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era between January 1962 and May 1975. VA has established special consideration and procedures for claims based on herbicide agent exposure in Thailand. A veteran may submit the dates, location and nature of the alleged exposure, which will be referred to the Joint Services Records Research Center (JSRRC) for a formal finding concerning herbicide agent exposure. VA’s Compensation and Pension Service provides for special consideration of herbicide agent exposure for veterans whose specific occupations placed them on or near the fenced-in perimeters of certain designated Royal Thai Air Force Bases in Thailand during the Vietnam Era. If a veteran served in the U.S. Air Force in Thailand between February 28, 1961 and May 7, 1975, at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang RTAFBs as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by their military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. As a preliminary matter, the Veteran has a current diagnosis of prostate cancer as evidenced by his September 2016 VA treatment record. The evidence fails to show the presence of the claimed disability during service. Additionally, as the Veteran does not contend, and the evidence of record, including service treatment records, does not otherwise show that his prostate cancer had its onset in service, service connection on a direct basis is not warranted. Combee, 34 F.3d at 1043-1044. Thus, the primary issue is the determination of whether the Veteran is entitled to service connection on a presumptive basis- due to either onset of a malignant tumor within one year of service discharge or as a result of exposure to herbicide agents during service. A malignant tumor is not shown to have manifested within the one year period following discharge from service. Therefore, prostate cancer is not presumed to have been incurred as a result of service. See 38 C.F.R. § 3.309(a). Prostate cancer is an enumerated condition under 38 C.F.R. § 3.309(e). Regarding herbicide agent exposure, the Veteran does not allege, and his personnel records do not indicate: service in Vietnam; service near the Korean demilitarized zone (DMZ); or regular and repeated operation, maintenance, or service onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. His personnel records do, however, confirm his service at Nakhon Phanom RTAFB, which took place during a time for which presumptive herbicide agent exposure would be found if he had the requisite type of duty. Further, his service records indicate a MOS of munitions specialist, which is not among the VA Compensation and Pension Service’s enumerated list of duties that would place him near the base perimeters. The only remaining question for the Board then is whether there is other credible evidence that the Veteran served near the air base perimeter at Nakhon Phanom RTAFB sufficient to concede herbicide agent exposure on a facts-found basis. For the reasons that follow, herbicide agent exposure cannot be conceded on a facts-found basis. An April 2017 Statement in Support of Claim submitted by the Veteran reflects that he was stationed at Nakhon Phanom RTAFB, Thailand within the necessary timeframe and within the 500-meter overspray area near the base perimeter. However, the statement did not provide specific dates of service in Thailand or corroborating details to explain how the Veteran was exposed to herbicide agents, as was requested in the April 2017 subsequent development letter from the VA requesting the Veteran’s assistance in developing his claim for benefits based on herbicide agent exposure. Based on the evidence submitted by the Veteran, JSRRC, in a July 2017 memo to the VA, provided a formal finding that the information required to corroborate herbicide exposure during service in Thailand described by the Veteran is insufficient to send to the U.S. Army and JSRRC. The memo further noted that the Veteran’s statement of exposure to herbicides could not be verified at that time. Therefore, the AOJ could not concede herbicide agent exposure and denied the Veteran’s claim in a July 2017 rating decision. In February 2018, the Veteran took part in the VA Agent Orange Health Registry (AOR). The Veteran’s participation included an in person prostate cancer disability benefits questionnaire ( DBQ ) performed by VA medical personnel in which his personnel and medical records were reviewed. The DBQ report shows the Veteran believed that he may have been exposed to herbicide agents, but provided no conclusions regarding actual herbicide agent exposure. The DBQ resulted in a confirmation of his prostate cancer diagnosis. In the August 2018 statement of the case, the AOJ once again denied the Veteran’s claim noting that there is no evidence that his daily duties placed him near the air base perimeter. In a September 2018 VA Form 9, the Veteran provided additional details as to his daily duties. He stated that from late 1968 through 1969 he was stationed at Nakhon Phanom RTAFB where for twelve to fourteen hours per day, seven days a week he assembled the base petroleum in napalm bombs which were then loaded onto trucks as part of a classified mission. The Veteran also noted that he was not allowed to leave the base under any circumstances. The Veteran provided no additional details as to how he was exposed to herbicide agents. At his September 2020 hearing, the Veteran again noted his duties at Nakhon Phanom RTAFB, filling napalm bombs which were then loaded onto trucks. When asked if this took place along the perimeter of the base, the Veteran responded that “they said it was along the perimeter, yes.” The Veteran gave no indication who “they” referred to and provided no first-person testimony as to whether his work took place along the perimeter. The Veteran also replied affirmatively when asked whether the trucks were along the perimeter, though offered no additional details. When asked whether he could see the perimeter from his daily activities, the Veteran did not provide a direct answer, instead noting that there was fencing and that it was controlled and guarded. The Veteran did reiterate that he was not allowed to leave base and did not go anywhere while stationed in Nakhon Phanom RTAFB. He provided no other testimony as to his proximity to the perimeter of the base. The Board finds the Veteran’s statements regarding the nature of his service in Thailand are credible. The Veteran is competent to report information within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran failed to provide details to credibly corroborate his assertion that his duties at Nahkon Phanom RTAFB placed him near the perimeter of the base on a regular basis. The Veteran, at his hearing has stated that an unidentified “they” said his work filling bombs took place along the perimeter of the base. However, the Veteran himself provided no explicit first-person testimony, lay statements or other credible evidence indicating that he was regularly working at the perimeter of the air base in a situation which would likely involve contact with an herbicide agent. Given the absence of evidence from the Veteran placing him near the perimeter of the base during his daily duties, the preponderance of the evidence is against a finding that the Veteran’s duties were “near” the perimeter similar to a security policeman or dog handler. VA has acknowledged that there was use of herbicides on the fenced-in perimeters of military bases in Thailand, including Nakhon Phanom RTAFB. However, the Veteran has not been shown by competent, credible evidence to have served near the air base perimeter or regularly traversed such while at Nakhon Phanom RTAFB, therefore the Board finds that the Veteran’s in-service herbicide agent exposure cannot be acknowledged on a facts-found basis. As the preponderance of the evidence is against the claim the benefit of the doubt doctrine is not applicable in the instant appeal. Service connection for prostate cancer is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.